This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Filed July 17, 2007
Hennepin County District Court
File No. 27-CV-06-1421
Nathan A. Busch, 7601 Wayzata Boulevard, Suite 207, P.O. Box 26081, St. Louis Park, Minnesota 55416 (for appellant)
Jay M. Heffern,
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
case involves the proper application of the Minnesota Government Data Practices
Act (MGDPA), Minn. Stat. § 13.08, subd. 4 (2004), to the disclosure of public
information regarding the hiring of a city employee. Appellant
In September 2004, respondent City
On December 2, 2004, respondent sent appellant the hiring department’s Request to Offer an Initial Appointed Position Salary above step A; Mr. Bosacker’s resume; and the September 27, 2004 employment agreement letter. Respondent also provided appellant with a copy of a description of Mr. Bosacker’s position.
In January 2005, appellant again
wrote respondent requesting “all correspondence, applications, notebooks,
telephone logs, audio and video tapes, e-mail correspondence, facsimiles,
routing slips, memos, and any other form of communication or documentation
regarding the hiring of Mr. Steven Bosacker.”
In May 2005, respondent wrote appellant informing him that there was no
additional information relating to Mr. Bosacker and that “the City of
In January 2006, appellant filed a complaint in Hennepin County District Court under the MGDPA. Appellant sought an order compelling respondent to comply with the MGDPA and provide
[f]acts such as, but not limited to, who proposed the position, who designed the position, who suggested Bosacker to fill the position, who met to discuss the position, who advised Bosacker that there was a position, all minutes, tapes, telephone logs, facsimiles, or other records of any and all meetings or discussions that took place relating to the position, or in which the position was discussed.
Appellant also sought a declaration that respondent willfully violated the MGDPA, and costs and disbursements.
On January 31, 2006, respondent moved for dismissal of appellant’s complaint under Minnesota Rule of Civil Procedure 12.02(e) for failure to state a claim upon which relief can be granted. In its motion, respondent stated that “[appellant] seeks an order compelling information that simply does not exist, and, moreover, is not required to exist pursuant to Minn. Stat. ch. 13 and relevant case law.”
On March 16, 2006, appellant moved to convert respondent’s motion to dismiss to a rule 56 motion, for discovery, and to delay the hearing on respondent’s motion until he had time to complete discovery, depositions, interrogatories, and affidavits. After a hearing on March 31, 2006, the district court granted appellant’s motion to convert the motion to dismiss to a rule 56 motion and denied appellant’s motion for discovery and additional time to complete discovery.
The rule 56 motion was heard before the district court on May 2, 2006. The next day, the district court issued an order granting summary judgment in favor of respondent. In the accompanying memorandum, the district court stated:
This appeal follows.
D E C I S I O N
Appellant argues that the district court erred by granting summary judgment in favor of respondent.
an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of
material fact and (2) whether the [district] court[ ] erred in [its]
application of the law.” State
by Cooper v. French, 460 N.W.2d 2, 4 (
is a prerequisite to a court’s exercise of jurisdiction.” Petition
for Imp. of
construction is a question of law, which this court reviews de novo.
The Minnesota Government Data Practices Act (MGDPA) “regulates the collection, creation, storage, maintenance, dissemination, and access to government data in state agencies, statewide systems, and political subdivisions” and creates “a presumption that government data are public and are accessible by the public for both inspection and copying unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public.” Minn. Stat. § 13.01, subd. 3 (2004). The MGDPA provides that “any aggrieved person seeking to enforce the person’s rights under this chapter or obtain access to data may bring an action in district court to compel compliance with this chapter and may recover costs and disbursements, including reasonable attorney’s fees, as determined by the court.” Minn. Stat. § 13.08, subd. 4(a) (2004). The threshold matter in this case, therefore, is whether appellant has standing as an “aggrieved person” because he was denied access to data that was available to him as a matter of right under the MGDPA.
Appellant argues that the central issue in this case, whether a member of the public has standing as an “aggrieved person” when a government entity refuses to disclose requested information, is one of first impression, and that the legislature intended a member of the general public to have standing to bring an action to compel disclosure of public information. The Minnesota Supreme Court has already addressed this issue and held that
when the government violates the [MGDPA] by improperly denying a person access to data that the government is required by the [MGDPA] to make available—that is, refuses to grant access to data that is available as a matter of right—the person denied access is an “aggrieved person” under section 13.08, subd. 4.
Wiegel v. City of
For purposes of this argument alone, respondent acknowledges that if there were documents relating to the hiring of Mr. Bosacker that it had not released to appellant, appellant would be entitled to them as a matter of right and would be “aggrieved person” under the MGDPA. However, appellant has failed to show that there exists an issue of material fact with respect to the existence of such information.
appellant has not alleged any facts demonstrating that respondent has relevant documents
that it is refusing to disclose. In his
brief, appellant states that “[i]t is . . . not controverted that
[p]laintiff makes an extremely broad new request for documents. For example, Plaintiff now asserts that, via discovery, he is entitled to all documents “that pertain to Steven Bosacker” in possession of Mayor R.T. Rybak. . . . Plaintiff makes no showing as to how obtaining such a broad swath of data is necessary to his original claim[.] . . .
It has been made clear to Plaintiff on numerous occasions that he has been provided with all data regarding the hiring of Mr. Bosacker.
Respondent’s statements do not amount to a tacit admission that additional documents exist. And, to the extent that appellant seeks information that is not written, the MGDPA does not compel its production. This court has previously determined that “information is not ‘government data’ until the information is recorded somewhere other than the human brain.” Keezer v. Spickard, 493 N.W.2d 614, 618 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).
For a genuine issue of material fact to exist, appellant’s argument must do more than “merely create a metaphysical doubt as to a factual issue.” DLH, 566 N.W.2d at 71. Appellant has failed to meet this burden. Instead, appellant simply argues that respondent is withholding information because appellant thinks respondent is withholding information. Appellant is not entitled as a matter of right to that which does not exist. Because appellant has failed to show that there exists an issue of material fact with respect to the existence of such information, and has therefore failed to show that he is “aggrieved” under the MGDPA, summary judgment was appropriate.
Appellant also argues that the
district court should not have considered respondent’s standing argument
because it was a dispositive motion that was not timely filed. No motion may be heard by the district court
unless it and any corresponding memoranda of law are served at least 28 days
prior to the hearing.
First, the letter brief respondent submitted to the district court was not a new motion; it was further briefing regarding respondent’s motion to dismiss. Second, respondent notified both appellant and the district court of its intention to raise the issue of appellant’s standing at the March 31, 2006, hearing: “I’m not trying to broadside the Court or Mr. Davis with this, but I am putting Mr. Davis on notice that this will be part of our motion to dismiss argument.” Third, as shown in the transcript of the May 2 motion hearing, appellant was fully prepared to argue the standing issue before the district court and has not shown that he was prejudiced in any way by the district court’s consideration of the letter brief.
citing any legal authority, appellant also argues that the district court erred
in denying appellant’s request for discovery.
The district court “has wide discretion to issue discovery orders and,
absent clear abuse of that discretion, normally its order with respect thereto
will not be disturbed.” Shetka v.
Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (